# TWEATTORNEY GENERAX~ OF TEXAS

February 26, 1974 The Honorable Charles R. Barden, P. E. Executive Secretary Texas Air Control Board 820 East 53rd Street Austin, Texas 78751 Opinion No. H- 241 Re: Application of Article 6252-17a, House Bill 6, 63rd Leg., to files of the Texas Air Control Board Dear Mr. Barden: Your opinion request concerns the applicability of Article 

# 6252-17a. V. T. C.S. , the Open Records Act of 1973. to “a written recommendation, made following an investigation, from a Regional Supervisor of the Texas. Air Control Board to a permit engineer regarding whether a particular construction permit.
. . should be issued.
. . .‘I You ask (1)whether 8$3(11)and/or 3(3) of the Open Records Act apply to such documents so as to except them from public inspection under the Act, and (2) whether th&act that no decision has been reached onwhether to grant or deny a permit would make any difference as to the applicability of either. section to these documents. Before considering the applicability ofthe Open Records Act to the records described inyour letter , we must first consider whether such records are made public by other legislation, for we do notbelieve that the Open Records Act of 1973 operates to repeal or nullify other legislation making information public. The activities ofyour board are controlled by the Texas Clean Air Act, Article 4477-5, V. T. C. S. Sections 1.07 and 2.13 of thatAct provide: *. Section 1.07
“Information submitted to the board relating to secret processes or methods of manufacture or

p. 1118The Honorable Charles R. Bardcn. page 2 (H-241)
production which is identified as confidential when submitted shall notbe disclosed by any member, employee, or agent of the board. ” Section 2.13 “All information documents and d&t& collected by the board inthe performance of its duties are the property ofthe state. Subject to the limitation of Section 1.07 of this Act, all records of the board are public records open to inspection by any person during regular office hours. I’ The language of 82.13 above, that “all records of theboard are public records”, is very broad andwe believe it clearly applies to the documents described inyour opinion request regardless ofwhether a decision has’been reached onwhether to grant or deny thepermit. Accordin#y, it is our opinion thatthe documents described inyour letter are public information without reference to the Open Records Act ani thatthe legislation making them public information is not repealed or effected by the Open Records Act. You also requested thatwe review Opinion No. M-957 (1971)which addressed itself to the question: “Doer the Texar Air Control Board or the Executive Secretary have discretion over which items and matters are to be deemed ‘confidential information’ and ‘public records’ as those terms areused inSections 1.07 and 2.13 of the Texas Clean Air Act? I’
. That opinion contained ananalysis of various types of “records” and concluded that “files on matters under investigation for violation dthe Texas Clean Air Act” are “evidence or potential evidence for an enforcement action pursuant to Section 4. 02 of the Act” and are “not open to inspection by the public. ” The recommendationa described inyour present opinion request do not appear tobe in this category and, accordingly, Opinion No. M-957 is notpertinent to your inquiry andwe are not called uponto overrule or affirm it. You have asked whether the distinctions made in the analysis in Opinion M-957 are still valid and our answer’tm thatwe are not in aposition to hypothetically discuss distinctions without reference toparticular documents.

p. 1119The Honorable Chailes R. Barden. page 3 (H-241)

SUMMARY A written recommendation by a regional supervisor of the Texas Air Control Board to a permit engineer regarding whether a particular construction permit should be issued is apublic record. Yours very truly,

Attorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

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